Stengel-gate Spreads: Why Was Richard Stengel Presented as an Expert on the Constitution on NPR?

8 Jul 2011

To give a quick review, on June 23, Richard Stengel wrote a cover story* for Time Magazine rife with factual errors. On June 29, I published a piece here recording fourteen clear factual errors in that story. I said at the time that I considered it a journalistic scandal that such an error-ridden piece appeared at TimeMagazine as its cover story, and ever since I have been crusading to embarrass them into a correction.

But what is also embarrassing is that other media outlets have treated Mr. Stengel as though he was an expert on the Constitution. Consider, for example, this blurp for a show on NPR entitled “Talk of the Nation” that aired on July 4:

In the fierce debates over health care, Libya, debt, gay marriage and other issues, Americans have been getting a lecture on the meaning of the Constitution and the intentions of its authors. Andrea Seabrook speaks with Richard Stengel of Time magazine and Yale law professor Akhil Amar about the political divide over the Constitution and how an 18th-century document applies in a 21st-century world. [emphasis added]

Now, I may not like Professor Amar personally, and I may vehemently disagree with him on many points, but I think it is fair to consider him an expert on the Constitution.

But as the other “expert,” we have Richard Stengel. Really, Andrea Seabrook? You actually read that article, and thought he was an expert? Because it is important to stress that many of these errors are obvious to any lay person. You don’t need three years of law school to know it is simply incorrect to say “[i]f the Constitution was intended to limit the federal government, it sure doesn’t say so.” You only have to know that there is such a thing as the First Amendment or the Second. Nor do you need complicated legal instruction to know that it is incorrect to say that the Constitution is not law–most people learn in elementary school that the Constitution is the supreme law of this land. And one doesn’t need a particularly deep understanding of the Constitution to become concerned when one sees Stengel declare that “[i]n drafting the 14th Amendment, Congress … wanted to emancipate blacks and allow them to vote.” I consider it fairly common knowledge that it was actually the Thirteenth Amendment that ended slavery, and the Fifteenth that outlawed racial discrimination in the franchise. These errors should have been obvious to anyone reading Stengel’s piece, and utterly undermined any claim he could make to be an expert.

A reasonable radio host, doing due diligence, would have realized that they only had two options with Mr. Stengel. She could either grill him about the serial inaccuracies in his article. Or, she could drop him as a guest entirely and find a true expert on the Constitution to replace him.

And while they were at it, they could have added a conservative expert on the Constitution to balance the debate.

So if you listen to the whole program (and seriously, dear reader, don’t do that psychological damage to yourself) you get Richard Stengel consulted on issues such as gay marriage:

Michael [A Caller]: I’m a gay person in a committed relationship of 10 years, and although we’ve done all the legal paperwork to make our relationship as legal as possible, we’re traveling to Vermont this summer to become married.

My question is: As I understand Article IV of the Constitution and the 14th Amendment, how possibly could a conservative court uphold the DOMA, as I see it just clearly – despite what anybody feels morally or socially – clearly DOMA is unconstitutional.

SEABROOK: DOMA meaning the Defense of Marriage Act. Let’s turn to you, Richard Stengel. What do you say?

STENGEL: Well, it’s a good question. I don’t know the answer to it, because the court can decide whatever it wants. But I would put your question in the context of what we were talking about in terms of originalism and the limits of originalism, because I think the framers would certainly not really understand the idea of same-sex marriage.

Marriage, of course, is not mentioned in the Constitution, nor is privacy, as Akhil mentioned it. And I do think that we have evolved socially, in terms of different things that we now believe are morally correct and morally true, and we have to – the Constitution has to adapt.

I mean, I would say that the original vision of the framers, as interpreted, is that they did want equity for all Americans and that they wanted, you know, fairness before the law. And you could argue that, you know, if Madison or Washington or Jefferson were alive today, they would be in favor of same-sex marriage.

Now this caller, Michael, knows something of what he is talking about, but Stengel is clearly clueless. That is right, the caller seems to know more about the Constitution then this so-called expert. First, the reference to Article IV, is almost certainly a reference to what is known as the Full Faith and Credit Clause. It reads:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.

In other words, the caller wanted to know how, consistent with the Constitution, Texas could refuse to recognize a gay marriage performed in Connecticut. That is a good question and Mr. Stengel utterly fails to even recognize that this is the question being asked. Instead he launches into a discussion about what he imagines Washington, Jefferson and Madison would say about gay marriage generally. The problem with that analysis it twofold.

First, Jefferson is not one of the framers of the Constitution. He was in France at the time. The closest he came to contributing to the process was to convince Madison that it was wise to add a Bill of Rights. He didn’t write any of it.

(Washington is also a dubious choice in “framer” but I will give Stengel a mulligan on that given that Lincoln once did the same thing.)

But more importantly, Madison and Washington are not the correct framers to consult when discussing how they would “feel” about gay marriage because they would tell you that the original Constitution said nothing on the subject of marriage–it was primarily dominion of the states and to a minor degree, the Federal territories. The part of the Constitution that allows Federal courts to pass judgment on state marriage laws, to a degree, is the Fourteenth Amendment (which the listener also alluded to), which was written after Madison and Washington and the entire original founding generation was long dead. The “founders” on that topic were men like Thaddeus Stevens (one of my Constitutional heroes), Charles Sumner and John Bingham, to name only a few. So in Stengel’s attempt to channel the spirits of the founders he wasn’t even talking about the right people.

Later on we get his wisdom on the Constitutionality of banning pot:

SEABROOK: Okay. Let me try you on this one, Richard Stengel. A man from the Marine Corps – he’s Darryl(ph) in Bend, Oregon – writes that he uses cannabis daily to treat both his symptoms of PTSD and chronic pain, no narcotics, no alcohol. He wants to know, he uses it responsibly, and he believes that cannabis is – the prohibition of it is unconstitutional for many reasons. Your thoughts?

STENGEL: Well, of course the high court did prohibit the use of alcohol as an amendment, and then that was overturned. I’m not sure that the Constitution says very much about that. But if you look at the use of alcohol and medication, you know, state courts right now, you know, have the predominant opinion about that. And if the states can legalize marijuana, as some states have, then, you know, that’s – you should probably live in one of those states.

Oy vey, where do I start with that answer? First, contrary to his suggestion, the prohibition of alcohol was not enacted by the Supreme Court. The Supreme Court didn’t ratify the Eighteenth Amendment. “We the people” did. Nor was the Eighteenth Amendment “overturned.” The correct answer is that it was repealed, again by “we the people,” by ratifying the Twenty-First Amendment.

Secondly, the current Supreme Court says that even if a state legalizes pot, the Federal Government can still outlaw it and arrest people for violating those laws even if the state specifically makes that usage legal. That was determined in a recent case entitled Gonzales v. Raich, a fact that Stengel is apparently blissfully unaware of. He seems to think that states can prevent federal enforcement of anti-drug legislation. He is, as a matter of black letter law, wrong.

In order to reach that conclusion in Gonzales, the Supreme Court relied on … (drum roll please) … the Commerce Clause. So it is useful to compare what Stengel said on the application of the Commerce Clause to the growth and consumption of pot, to his view of the application of the Commerce Clause to the “act” of not buying health insurance in his Time cover story:

One would like to think that the decision to buy health insurance — or not — is a private one. If you’re young and healthy, you might just say, I’d rather spend my money on something else. That’s your right — and it may well be a rational decision. But it’s hard to argue that not buying health insurance has no interstate economic consequences.

So according to him, all you need are interstate economic consequences in order to justify federal regulation. So how is that not present in the growing or consumption of cannabis? His own enunciated principles, if he managed to remember them and apply them evenly, would have led him to the same conclusion reached by the Supreme Court: the Federal Government can stop you from growing or using pot, even if your state purports to legalize it.

Later on, in discussing Citizens United, he makes this clueless statement:

Again, another area where the originalist vision is not necessarily perfectly 20/20. I mean, there were – there was no money in politics in the 18th century.

But actually that wasn’t the case. Mass media wasn’t suddenly invented in the twentieth century with the advent of radio. In the 1700’s, politicians needed cash to start newspapers to praise their side and smear the competition (the ideal of an unbiased press didn’t come until much later), and that was indeed money in politics.

Next, he talks about the public debt and the debate over the debt ceiling:

STENGEL: Well, yes. The – these – I think a little-known clause of the 14th Amendment, Section 4, basically says that the public debt of the U.S. can’t be violated. It’s one of the only kind of full, you know, 100 percent prescriptions in the Constitution, and it’s not something that people pay that much attention to. And I believe that the president could say that in fact the U.S. defaulting on its public debt is unconstitutional, and therefore I, as president, will take these extraordinary measures to avoid that from happening.

And I think certainly if you, again, look at the original intent of the framers, I think, they certainly didn’t want the U.S. defaulting on its debt, and part of the reason that the Constitution was created in the first place was to have an organization, a central government that could actually pay off the debts from the Revolution.

First, he is misstating what the Fourteenth Amendment says. What it actually says, in relevant part, is this:

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.

Saying the debt shall not be questioned has very little to do with whether Congress must pay it and by what means. If you fail to make your mortgage payment, you haven’t denied the validity of the underlying loan; you have simply failed to make a payment on it, potentially even defaulting on it.

Building on this fundamental misunderstanding of the Fourteenth Amendment, in the original Time magazine article,* he argued that the President could take extraordinary measure to see to it that the payments are made on our debt:

But if in the end Congress seems intent on allowing the U.S. to default on its debt, the President can assert that that is unconstitutional and take extraordinary measures to avoid it. He can use his Executive power to order the Treasury to produce binding debt instruments that cover all of the U.S.’s obligations around the world. He can sell assets, furlough workers, freeze checks — heck, he could lease Yellowstone Park. And it would all be constitutional. [emphasis added]

So, according to him, this clause empowers the president not merely to pay the debt, but to incur more debt. I mean that is the crazy place we are in, where somehow Washington has agreed that it is impossible to make our payments on our debt without borrowing more money. It is Alice-in-Wonderland logic. As I wrote several months ago:

Try this sometime. Go to your local bank. Tell them that you need a loan. They will ask why, in one way or another. When they ask why, explain to them that you already have a massive loan [with] someone else that you will not be able to repay unless you get this loan from them. When they ask how you got that loan in the first place, then explain to them that this loan was taken out because otherwise you couldn’t have paid a previous loan [without it].

And when they ask how you plan to pay off this [new] loan, explain to them that surely someone else will loan you that money.

Then, let me know in the comments when they stop laughing at you.

But besides that little bit of Washingtonian unreality, what Mr. Stengel failed to notice is that another part of the Constitution specifically reserves the right to Congress and Congress alone to put us into debt. In Article I, Section 8, Paragraph 2, the Constitution states that “Congress shall have the power … [t]o borrow money on the credit of the United States[.]” That means Presidents don’t have the power to do so, and the Courts don’t–only Congress does. And nothing in the language of Section Four of the Fourteenth Amendment suggests that they were altering this clause of the Constitution so as to give the President the power to take us further into debt without Congress’ consent.

Now, none of these errors are as egregious as the fourteen errors I found in his Time cover story. But still any person who tuned in to that show was positively miseducated by Stengel’s clueless commentary. Despite his evident incompetence on the subject of the Constitution–obvious to anyone who read his Time cover story–he was held up as an expert on the Constitution, and his disinformation was launched on unsuspecting listeners as gospel.

Which makes the message of the last caller they had on the show unintentionally ironic:

MIKE: First of all, I just got to give you guys a big shout-out and thanking you for this sort of civic discussion. This is the sort of thing that, frankly, some little bit of public funding is appropriate because it’s the sort of civic discussion you just don’t get in any other media. So thumbs up to NPR on Fourth of July. It’s very appropriate. [emphasis added]

That’s right, dear reader, Richard Stengel was allowed to spew his nonsense on the radio and you had the privilege of paying for it.

At the very least, NPR owes its listeners (and the taxpayers) an apology and a correction for each of his errors.

I have already written to NPR’s ombudsman about this. You can see the letter I wrote to him, here.

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* Please note that I am no longer going to link to Stengel’s Time story directly. You can find a link in the post listing the serial errors he made if you want to fact check them, but I am no longer going to increase that site’s traffic directly.